Are NFA items really illegal in Texas?

Todd J. Rathner, former NRA lobbyist in Arizona and a current Board Member (Photo: NFAFA)

Todd J. Rathner, former NRA lobbyist in Arizona and a current Board Member (Photo: NFAFA)

Last week, during my interview with Todd Rathner, the executive director of the NFA Freedom Alliance, he said something that caught the attention of many readers and gun-rights advocates.

Here’s the exchange, with emphasis added:

S.H. Blannelberry: “Shall Certify” is a great cause, but how realistic is it to think that all 50 states would at some point adopt shall certify legislation with respect to NFA items (I suppose the same could have been said with respect to CCW laws 30 years ago)?

Todd J. Rathner: Yes “Shall Issue” CCW is the perfect parallel. We believe that any state that has Shall Issue CCW is ripe for “Shall Certify” laws to be passed. It will be difficult, it will take time, but it can be done in the 40+ states that have real Shall Issue CCW. In the meantime we also need to work on other related issues at both the state and federal level.

For instance NFAFA has just announced that we have a bill sponsor in Texas to change the law relating to NFA items in Texas. Currently NFA items are illegal in Texas…YES…Illegal! You can be charged with possession of a “prohibited weapon” if you possesses any NFA item (see TPC 46.05 http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.46.htm)

Your only protection is that the law has a “defense to prosecution” built into it, which says if the NFA items are registered pursuant to the NFA then you may raise that as a defense at trial. The practical effect is that if you possess these items, and are charged with possession, it will cost you a lot of money and time to get your guns/silencers back! I have a gun dealer in San Antonio charged under this statute who was arrested for possessing a silencer. He fought it and it cost him $14,000 and 8 months to get his silencer back! The NFAFA is the only organization focused on fixing these so called DTP laws which exist in 5 states AK, OK, TN, TX, WA.

***

Well, since there are a lot of gun owners who possess NFA items in Texas, this caused quite a stir and raised the concern of whether Rathner was correct in his assessment that NFA items are technically illegal in Texas.

Rathner is right, but the American Suppressor Association, another organization dedicated to making NFA items more available to law-abiding citizens put out the following press release, arguing that the “defense to prosecution” statue is really a non-issue:

In recent weeks, select organizations have made the claim that items regulated by the National Firearms Act of 1934 (NFA) are illegal to possess in Texas and four other states with large NFA markets. These states include Alaska, Oklahoma, Tennessee, and Washington. This claim is false.

NFA items ARE LEGAL to own and possess in all five of the aforementioned states.

The basis of the claim hinges upon a flagrant misrepresentation of the law. Texas Penal Code states:

“Sec. 46.05. PROHIBITED WEAPONS. (a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells:

(1) an explosive weapon;

(2) a machine gun;

(3) a short-barrel firearm;

(4) a firearm silencer;

(5) knuckles;

(6) armor-piercing ammunition;

(7) a chemical dispensing device;

(8) a zip gun; or

(9) a tire deflation device.

(b) It is a defense to prosecution under this section that the actor’s conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.”

The code then goes on to clarify the instances under which civilian possession of an NFA item is legal:

“(c) It is a defense to prosecution under this section that the actor’s possession was pursuant to registration pursuant to the National Firearms Act, as amended.”

As you can see, lawful registration in accordance with the National Firearms Act is a “defense to prosecution”. In Texas, any “defense to prosecution” has to be disproven by the state beyond a reasonable doubt. If reasonable doubt is established that the item in question is properly registered, the state requires that the defendant be acquitted.

In practical terms, this defense will only come into play if a law enforcement officer in Texas requests to see your proof of registration for an NFA item, and you are unable to produce the proper paperwork. On the other hand, if an individual is arrested for the possession of an NFA item, all he or she would need to do to avoid charges is show their ATF Tax Stamp for each NFA item. Nearly all prosecutors understand that even if a person doesn’t have their tax stamp when arrested, producing it at trial will raise enough of a reasonable doubt to make a conviction impossible. As a result, most prosecutors are not interested in pursuing cases that will obviously end in acquittal. Doing so could result in malicious prosecution charges.

This defense is similar to how Texas handles drivers who are caught operating a motor vehicle without a license. They too have a defense to prosecution, and will be acquitted if the driver can produce a driver’s license in court that was valid at the time of their offense (Tex. Trans. § 521.025(d)).

When discussing the legality of NFA items, bear in mind that Texas is by far the largest NFA market in the country. In terms of suppressors, Texas has 86,579 in circulation as of March, 2014, according to the ATF’s 2014 Annual Statistical Update of Firearms Commerce in the United States. With a combined total of 136,182 registered suppressors, AK, OK, TN, TX, and WA make up nearly 25% of the market. Although there are slight variations amongst defense to prosecution laws in different states, and although better statutes would be ideal, all five of these states allow civilians to own and possess NFA items in a similar manner to Texas. The ATF would not have approved the transfer of over 136,000 suppressors to these states if they were illegal.

The American Suppressor Association is the unified voice of the suppressor industry. The interests of suppressor manufacturers, distributors, dealers, and consumers are our only priorities. Although we will work in 2015 to enact stronger policy surrounding existing defense to prosecution laws, our primary initiatives on the state level will remain the passage of state ownership, hunting, and shall certify legislation across the country. We will not be fooled by fabricated issues.

***

Upon reading that press release, NFA Freedom Alliance responded, defending its position that NFA items are technically illegal and that the “defense to prosecution” should be repealed:

In a statement revealing a fundamental disconnect with the concerns of the NFA community, a Second Amendment trade organization recently claimed that the NFA Freedom Alliance’s efforts to replace and improve upon defense-to-prosecution statutes in states like Alaska, Oklahoma, Tennessee, Texas, and Washington are unnecessary and constitute a “fabricated” issue.

Under a defense-to-prosecution (DTP) statute, possession of an item regulated by the National Firearms Act (NFA) is technically illegal; however, criminal courts are required to accept the defense that the item was possessed in full compliance with the NFA. The NFA Freedom Alliance maintains that DTP statutes place a draconian burden of proof on gun owners and that, because law enforcement officers are not judges and have no authority to rule on the legitimacy of a criminal defense, officers in DTP states are more likely to arrest the owner of a properly registered NFA item and let a court settle the matter.

The suggestion that defense-to-prosecution statutes are a non-issue does not sit well with Michael Mihalski, a San Antonio gun dealer who was arrested in Austin, Texas, in September of 2013 for possessing a rifle suppressor purchased and registered in full compliance with the National Firearms Act. “As someone who was arrested, booked, and forced to pay thousands of dollars in legal fees and wait eight months to get my suppressor and rifle back, I can tell you this is not a ‘fabricated’ issue,” said Mihalski. “It is a very real issue that has been and will continue to be used to persecute law-abiding citizens with legally registered NFA items. Of course, I shouldn’t be surprised that the same organization that completely ignored my pleas for assistance when I was arrested, is now claiming that the law is fine as written.”

NFAFA Executive Director Todd Rathner, added, “It is unfortunate that a Second Amendment organization would be either too naïve to understand the negative implications of defense-to- prosecution statutes or too egotistical to support an initiative launched by another organization. The NFA Freedom Alliance will not be distracted from our mission by petty naysayers, and self-serving groups who view likeminded organizations as rivals. We will continue to protect the NFA community will all we’ve got, and we stand ready to work with the entire Second Amendment community to secure the rights of all NFA owners.”

***

It appears there’s a disagreement between the two organizations regarding the urgency of repealing and replacing “defense to prosecution.”  NFAFA believes it’s a high priority whereas ASA appears to be content with the status quo, though it does acknowledge that better laws would be ideal.

Where I come out on all of this is I support both the NFAFA and the ASA.  While they may disagree on what is the optimal strategy to making NFA-items more readily available, in terms of the big picture, they both are fighting the good fight.

What are your thoughts?

{ 20 comments… add one }
  • Sam June 23, 2017, 3:09 pm

    I detest ALL DTP laws. It is true that Officers are not able to see facts not in evidence, but laws need to be much more un-ambiguous. DTP is not far removed from making everything illegal, and selectively enforce in order to administer social engineering towards a government’s goal.

  • Bud December 9, 2016, 9:41 am

    I don’t understand why these groups are not lobbying Congress to simply allow silencers to be sold at local Walmarts, gun shops, etc. just like a flash hider or muzzle brake? As far as I know there hasn’t been a single problem with people who own them now? Why put everyone through the hassle of filling out forms upon forms, trusts, etc. for an item that simply helps save our hearing, causes fewer issues with gun ranges and surrounding neighborhoods, scaring game on a hunt, causing undo stress for those with PTSD, etc.? It should be fairly simple to pass laws pertaining to silencers since we don’t have near as many gun grabbers in Congress and a president that would like to do away with our. Civil rights. Does anyone really think that the 2nd Amendment was designed to limit firearm safety devices?

    I believe that we should be able to pick up a silencer at any gun store or Walmart, or even make our own if we want. There are hundreds of videos on YouTube that show you how to make your own silencer. The big problem is going to be finding someone to thread barrels. Millions of gun owners are going to want their rifles threaded. Sales of threaded pistol barrels will also be through the roof. It may be a good idea to buy pistol barrels and have rifle barrels threaded now, before the mad rush begins.

  • Billyd July 7, 2015, 9:48 pm

    I reside in Maryland and I have a class 3 permit. I would like to take my suppressor to visit in Va. Can I legally do this and return to Md?

  • Fred November 4, 2014, 6:11 pm

    $^#!
    I did not figure out what NFA is. Stick your acronyms.

    • John Quirk November 4, 2014, 9:12 pm

      NFA is the acronym for National Firearms Act of 1934. Hence NFA. The federal law that controls ALL full auto, suppressors, short barreled rifle’s, short barreled shotguns and other assorted item’s.

  • ibjj November 4, 2014, 7:53 am

    Carry your NFA tax stamp with you, and legally hunt in certain areas of Texas, with your suppressor attached. That is most certainly State approval.

  • John Quirk November 3, 2014, 11:09 pm

    Texas penal code 46.01 (9) and 46.05 states Texas law prohibits ownership outside of NFA compliance, calling possession while in compliance “a defense to prosecution.” In other words you may legally own any NFA item as long as you are in compliance with federal law. Again with the proper documentation from the BATF you may own any NFA item you hold the documentation on. You must as required by NFA 1934 to have that documentation with you while in possession. If you go to the range you better have the document with you are you are in violation of federal law. Your NFA can and will be confiscated and you get to go to jail as you have no proof of legal ownership. NFA 1934 states you must have the documents with you at ALL times.

  • John Quirk November 3, 2014, 1:11 pm

    OK, just for verification I just checked Tx state laws in reference to NFA items. No NFA item is illegal in the state of Texas as long as you have proper documentation from the BATF. But then if you don’t have documentation you are also in violation of federal law, so you not only can be prosecuted by the state but the government as well.

    • Pete November 3, 2014, 4:06 pm

      Yep don’t know where they got there info .
      And as to having your “stamp “with you,my FFL made me a laminated wallet size and I keep a full size copy in each glove box

      • John Quirk November 3, 2014, 10:44 pm

        I’m with you Pete. I keep a copy of my forms for each NFA item I own in my console. I never know what I’m going to take to the range on any given day, so I have a copy for each one. My wallet isn’t big enough for all the NFA I own. I don’t understand where the false information comes from. Any one can go online and verify the information. I do know there is a movement to try and remove the CLEO ( chief law enforcement officer) from signing off. Most CLEO’s won ‘t sign so a trust is used in lieu of the signature. With the BATF new Eform it’s only taking about 90 days to get the paperwork.

  • Pete November 3, 2014, 11:54 am

    So will the Texas game wardens be out filing these cases on deer hunters ?
    Doubt it–suppressors are legal for deer in Texas

  • jim November 3, 2014, 11:44 am

    Interesting. I thought only the ATF could check that NFA items are legit?
    So, Texas wants to EXPAND the power to local leo’s that have no knowledge of the laws, as is implied here?

    Damn glad in Florida we fixed this issue. local Leo’s that step over the line in Florida put their careers on the line for attempting to supersede state laws.

  • Chuck Wagon November 3, 2014, 9:31 am

    Suppressors can be taxed on a Form 1 or a Form 4 to begin with; secondly, a ‘defense to prosecution’ is presented to the Court AFTER you have been arrested and charged. This means you will have had to post bail and retain and Attorney, neither of which are free. Your item(s) will be seized which will also require legal action to recover. A ‘defense to prosecution’ is not a replacement for an exception. You may beat the rap, but you will not beat the ride.

    • John Quirk November 3, 2014, 12:50 pm

      All Class 3 NFA items are taxed with a $200. stamp AOW’S (any other weapon) are taxed at $5 this includes short barreled shotguns. If you register an AR frame to build an SBR (short barreled rifle) you pay a $200 fee for the stamp which is attached to the form 1 it is registered on. As for legality the local you live in may prohibit the NFA item but as for the federal government once the BATF has issued the permit you have met ALL requirements of federal law. All of my suppressors are registered on form 4’s and the SBR’s are on Form 1’s and my full auto’s are on form 4’s as well.

  • robert p November 3, 2014, 9:26 am

    This author is correct in my view and I am in Texas now due to elder care. My home state is Arizona. People in Texas live with the false idea that Texas is weapon friendly to law biding people. It is not friendly, in fact, hostile comes to mind. Did you know that having a folding knife is illegal in San Antonio? Or a machete anywhere in Texas? Did you know that kali sticks are illegal? Did you know your wife’s kitchen butcher knife is illegal (if over 5.5 inches of blade) as is the bread knife? I can any of the above in plain sight in California, yet, not one in Texas. Texas is one of the 11 states outlawing silencers. Once might even make the case a baseball bat at the local high school is a felony anywhere in Texas. Yes, you think I am crazy. Just look up Texas Penal Codes (author’s reference is the one I used too) to verify these claims. The main benefit for these laws is it creates a legal “probable cause” which is any LEO’s license to steal in Texas. It serves as their ticket to ride… All your possessions to include your home can be seized and then sold at auction to benefit the city. My solution is simple, I am here for elder care. My noncompliant goods are in storage back in Arizona, my butcher knife is short at 4 inches and i do not like baseball. It is then outa here!

    • John Quirk November 3, 2014, 12:40 pm

      I think you best check your facts. Silencer’s (suppressors) are NOT illegal in Texas. In fact the Texas legislature voted to allow the use of suppressors while hunting certain game animals. I am a native Texan and I own numerous NFA items.

      • Texas Frederic Bastiat November 20, 2014, 10:36 am

        @John Quirk 11/3/14/12:40pm…. READ THE ARTICLE. go read texas Penal code 46.01. then re -read this article, as you obviously didnt. yes, federally, NFA items are legal. Yes, Texas still has NFA items on the illegal to possess. you can be arrested, then you need to defend yourself in court. The issue – “you can be arrested”.

  • Cliff Kidd November 2, 2014, 12:15 am

    I don’t understand.
    If both are fighting the good fight, then why is ASA trying to undermine NFAFA by saying what it’s fighting for isn’t really an issue?
    Shouldn’t the ideal response be to support the other organization in any endeavor that helps NFA owners, regardless of how important the issue really is?
    The ASA seems to be more worried they’re no longer at the forefront of protecting NFA owner’s rights, rather than actually getting their hands dirty….but if they decide to support any effort to restore my rights they’ll get my support as well.
    Until then, I’m going to view them as a potential hindrance to the “good fight”.

  • David Goldman November 1, 2014, 10:57 pm

    The risk of being arrested in any state with a suppressor involves using your approved ATF form 4 for a suppressor as a defense to prosecution.in some states it may be more of a bar to prosecution done in Texas, but the risks and costs associated with that are similar in all states if you don’t have an approved ATF form 4.

    • John Quirk November 3, 2014, 12:59 pm

      If you don’t have registration forms for your Class 3 NFA items you are automatically in violation of federal law. The National Firearms Act of 1934 spells out what is required. If you have registration and don’t have it with you when in possession you are in violation. Suggestion take the original make a couple of copies front and back then lock the original up. Also you can NOT transport an NFA item outside the state it is registered in without calling and getting approval from the BATF. By the way I have come in contact with law enforcement numerous times with no problems. They may ask for your registration and you are REQUIRED to provide them.

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